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OCDW 01.09.2017

(with special thanks to Mark Hoover, OIDS, for contributing regularly)

“I have lived my life, and I have fought my battles, not against the weak and the poor—anybody can do that—but against power, against injustice, against oppression, and I have asked no odds from them, and I never shall.”—-Clarence S. Darrow, Attorney for the Damned 491, 497 (Arthur Weinberg ed. 1957).

OKLAHOMA

Fulgham v. State, 2016 OK CR 30 (December 22, 2016): Extradition: Fulgham was convicted by jury in Tulsa County (the Hon. Doug Drummond, presiding) of two counts of Murder in the First Degree and sentenced to consecutive LWOP sentences. In this appeal, he raised an issue under the Interstate Agreement on Detainers Act since the State waited 565 days to try him before a jury, rather than the 120 day maximum allowed under the Act. However, this issue was not raised until sentencing—and even then by the trial court, and not the Defendant. The Court found that the issue was waived, even though there was no affirmative waiver on the record. Also, an IAC claim was also alleged, which seemed very strong, essentially that if trial counsel had asserted the claim then the case would have been dismissed with prejudice. The Court concluded that the issue was speculative and that no prejudice was shown.

Tucker v. State, 2016 OK CR 29 (December 21, 2016): After-Formers (Enhancement); IAC: Tucker was tried by jury in Cleveland County (the Hon. Tracy Schumacher, presiding) and convicted of A&B w/Deadly Weapon and Obstructing a Police Officer, AFCF. As to the sentence, the Court found “a high probability that the prior conviction used to enhance” was stale because more than 10 years had passed between the prior conviction and the current conviction, and also the crime of misdemeanor domestic abuse did not quality as a crime of moral turpitude. The Court found IAC for counsel’s failure to raise this issue, and remanded for resentencing.

Wells v. State, 2016 OK CR 28 (December 20, 2016): Supervised Release: Wells pled no contest in Oklahoma County to a count of Lewd Acts with a Child Under 16, and was sentenced to five years, all but the first 30 days suspended. The State filed an application to revoke alleging new crimes and failing to take a polygraph pursuant to sex offender rules and conditions. The district court revoked in full, but also imposed post-imprisonment supervision, which was not part of the original sentence. The State conceded error, but the Court disagreed upon analyzing the specific statutory provisions governing sex offenses. NOTE: The Court’s decision seems incompatible with Friday v. State, 2016 OK CR 16, which the Court distinguished, but it strikes me as some sort of constitutional violation to impose supervised release when it was not part of the original sentence.

Hopkins v. LaFortune, 2016 OK CR 25 (December 22, 2016): Extradition: In this First Degree Murder case, Petitioner sought extraordinary relief based upon a violation of the Interstate Agreement on Detainers Act (not bringing the accused to trial within 120 days). Under the IADA, the time frame is 180 days when the State initiates the transfer of the prisoner, but 120 days when the prisoner initiates the transfer. Here, relief is denied because time tolled still allowed for trial within 180 days. NOTE: The IADA seems simple and straightforward, but this is one of those statutes the application of which the OCCA will go to extraordinary lengths to make sure that the accused is not granted relief. The chief culprit seems to be a case out of the Supreme Court, New York v. Hill, 528 U.S. 110 (2000), which held that the accused can “implicitly waive” the time restraints under the IADA “by accepting treatment inconsistent with the IADA’s time limits.” This is what you will deal with as a defense attorney. The IADA imposes obligations on the State to bring the accused to trial in a timely manner. But, in reality, the obligations to affirmatively object and move the case along fall on the accused, because if he/she does not become vocal, and specifically so, the courts will find waiver. Thus, this is another example of the courts essentially excusing the State from its obligations and imposing burdens on the accused in order to keep a criminal conviction going.

State v. Michael Allen Miers and Andrea Roberts Mae Gregoire, No. S-2016-332 (Okl.Cr., January 5, 2017) (unpublished): State Appeals; Conspiracy: This is a multi-country grand jury case out of Mayes County where two persons were charged with First Degree Murder and drug conspiracy. Judge Rebecca Gore sustained demurrers and dismissed the murder counts against both of the accused. The State appealed, and the Hon. Barry Denney, Associate District Judge, affirmed. In this nifty opinion, the Court affirmed over the State’s claim that neither withdrew from the conspiracy. NOTE: Judge Hudson dissented, apparently on the basis that he simply disagreed with the conclusions of the lower courts as to the facts. Judge Hudson’s opinions seem to reinforce my observation that he does not understand, or simply does not care to apply, the standard of review in many cases, particularly when the accused is entitled to relief. In this case, the standard of review is an abuse of discretion, an exceedingly difficult standard to meet on appeal. I see nothing in the facts of the opinion to suggest an abuse of discretion, and Judge Hudson’s dissenting opinion indicates that he simply disagrees with the lower courts.

State v. Chad DeWayne Henry, No. S-2015-1067 (Okl.Cr., December 15, 2016) (unpublished): State Appeals; Sufficiency (Robbery); Robbery: This is a State appeal where Henry was charged with Robbery, Maiming, and Placing Bodily Fluids Upon a Government Employee in Oklahoma County. The case was assigned for trial to the late Hon. Donald L. Deason, who heard, and granted, an oral motion to quash count one which was the conjoint robbery count for insufficient evidence. Henry and another person were in a car at Wal-Mart, asked for a cell phone from the cart attendant, and then took the phone. During the fracas, the attendant tried to retrieve his phone from the moving car and was injured, and at one point his hand was knocked away. The motion to quash was based upon the theory that the force used by the accused was employed as a means to escape, not to commit the robbery since the attendant had handed over the phone on a ruse. The State argued that the force was used to retain possession of the phone. Although Judge Deason agreed with the accused, the Court reversed, finding the evidence sufficient to establish robbery.

J.M.D. v. State, No. J-2016-745 (Okl.Cr., December 14, 2016) (unpublished): Sufficiency; Juveniles: In this juvenile case, a 15-year-old girl in Stephens County made a list of people that she did not like in school and called it a “Hit List.” For this, the State charged her as a juvenile with Endeavoring to Perform an Act of Violence. For some reason, the Hon. G. Brent Russell found her guilty and adjudicated her a delinquent child. In an accelerated docket decision, the Court reversed and this opinion followed, finding that the evidence was legally insufficient to support the conviction. NOTE: It is puzzling how a prosecutor could actually file a charge in a case like this, and how Judge Russell could go along with it.

Miguel Angel Chavira, No. F-2015-830 (Okl.Cr., December 15, 2016) (unpublished): Venue: Chavira was convicted by jury in Tulsa County (the Hon. Doug Drummond, presiding) of First Degree Felony Murder and Robbery with a Firearm. The Court affirmed, but I include this opinion because it has a good discussion of the issue of venue. The decedent was killed in Rogers County, but the robbery occurred at least in part in Tulsa County. The Court held that this was enough to establish venue under the circumstances.

United States v. Tommy Louis Taylor, No. 16-7028 (10th Cir., December 12, 2016) (Published) (Briscoe, Ebel & Murphy) (E.D. Okla., Hon. Ronald A. White): Federal Sentencing Guidelines (Crime of Violence): In this felon-in-possession of a firearm case, Taylor was initially sentenced to 110 months, but the matter was remanded for re-sentencing in light of the “residual clause” being vague issue, and he was sentenced this time around to 87 months. In this appeal, he argued that his prior conviction for Assault and Battery with a Dangerous Weapon under Oklahoma law was not a crime of violence, but the panel disagreed and affirmed. NOTE: As is the custom in the Circuit, the panel noted that Taylor had objected to this enhancement originally, but failed to do so at the re-sentencing, which resulted in waiver and plain error review.

UNITED STATES SUPREME COURT

“Only Supreme Court justices and schoolchildren are expected to and do take the entire summer off.” –Chief Justice John Roberts (statement made while he served as a lawyer in the Reagan Administration).

Shaw v. United States, No. 15-5991 (U.S., December 12, 2016): Statutory Construction (Bank Fraud): Shaw used identifying numbers of a bank account in a scheme to transfer funds from that account to accounts at other institutions from which Shaw was able to access the funds. He was convicted of violating federal law making it a crime to defraud financial institutions. Shaw argued that he had no intent to defraud the bank, only one its customers. The unanimous Court affirmed the conviction.

VICTORIES

CHASE MCBRIDE, Pryor, and PETER SCIMECA, OKC, scored good wins for their clients in the unpublished Miers case featured above, giving us a good opinion on the law of conspiracy. Nice work, Chase and Peter!

BOOK REVIEW: In the Garden of Beasts by Erik Larson (2011)

I got caught up on some reading over the holidays, including this book by Erik Larson, one of the best reads that I have had in a while.

Few subjects in twentieth century history are more fascinating than World War II, and especially the establishment of Nazi Germany and the rise of Hitler. I read William L. Shirer’s classic account The Rise and Fall of the Third Reich: A History of Nazi Germany (1960) about 20 years ago or more, and it is still one of the most readable and intriguing books on the subject primarily, in my opinion, because Shirer was actually there during the 1930’s when Hitler and the National Socialists rose to power, and he saw it happen first-hand. His account, as a reporter stationed in Berlin for most of that time, is told not as a dry history lesson of events about which we already know the outcome, but as a first-hand observer seeing things happen in Germany when the outcome is unclear.

Over 50 years later, Erik Larson has succeeded in doing pretty much the same thing with In the Garden of Beasts. Whereas Shirer’s work is a sweeping compendium covering over 1,500 pages which describe the full arc of the beginning, and end, of Hitler and the Nazis, Larson has chosen to keep Beasts more tightly woven, focused on the tenure of William E. Dodd as U.S. Ambassador to Germany. Dodd, a southerner, began his career as a history professor at the University of Chicago in 1908, but his ties to politics came in 1912 when he wrote speeches for then-candidate for Woodrow Wilson, and in 1920 Dodd published a biography of President Wilson titled Woodrow Wilson and his Work (1920).

However, Dodd was not on President Roosevelt’s radar for Ambassador to Germany in 1933, and in fact Dodd was about the fifth or sixth candidate deep before eventually being offered the post. World War I was in the national conscience, Germany was still not quite stable, and the position in Berlin was not at the top of the pecking order for the established diplomats in the State Department. Dodd’s name was eventually brought up by the Secretary of Commerce Daniel C. Roper, a longtime friend of Dodd’s, and with time pressure mounting before an adjournment of Congress, President Roosevelt selected Dodd for the post.

Dodd was confirmed as U.S. Ambassador to Germany on June 10, 1933. The frugal and down-to-earth Dodd set off for Germany the next month, along with his wife, son, 25-year-old daughter Martha Eccles Dodd, and his old Chevy. The reader knows that Germany, in this time period, was poised on a path of destruction merely a little more than a decade later, but the Dodds, of course, had no way of knowing this. The genius of Larson’s writing style is that he presents history as it unfolded for the Dodds, from their perspective as persons experiencing history as it happened, through their contemporaneous diaries and personal notes; and not as something told by a person who knows how the story goes. It is very effective because it allows the reader to understand that the rise of Hitler was not so easy, nor was his true character all that clear to those living in the moment until it was too late.

Dodd’s mandate—the real mandate—from Washington was to overlook American financial interests. American business had purchased a lot of German bonds and the government wanted to make sure Germany paid them. This was, of course, a fool’s errand, and President Roosevelt simply told Dodd to be an example of American liberal values in a place that had become increasingly anti-Semitic. Once Dodd and his family arrived in Germany, it quickly became apparent that the most interesting person in the quartet was not Dodd. It was his daughter, Martha.

Martha’s view of Berlin at that time was fresh and new, and she embraced the parties, social gatherings, and power circles there with a sexual ferocity that would be scandalous even today. Martha Dodd danced around the Third Reich through a string of lovers that included French diplomat Armand Berard, an aide to Hitler named Ernst Hanfstaengl, a senior Luftwaffe officer named Ernst Udet, future Nobel Laureate Max Delbruck, and incredibly, the first head of the Gestapo, Rudolf Diels. However, her most ardent lover at the time was Boris Vinogradov, a Soviet NKVD (forerunner of the KGB) intelligence officer masquerading as a diplomat. Martha’s story extended until 1990 when she died, but during 1933-37, she was a central figure in Third Reich diplomatic circles.

When the Dodds arrived in Berlin in mid-1933, the city was a re-built beautiful example of German industriousness, including the titular central park named the Tiergarten (in German “animal garden” or the garden of the beasts) where Ambassador William Dodd spent many nights walking in thought or, later, meeting with other diplomats in order to talk without being surveilled.

The first seeds of anti-Semitic government policy had just taken root in Germany, and to some of the Jewish American under-diplomats in Berlin it was alarming, in addition to the random assaults on Jews and Americans by the newly formed Nazi SA, the brown-shirted storm-troopers who took it personally when anyone, including foreigners, failed to stop and deliver a snappy Nazi salute during a parade march. But, anti-Semitism was deeply rooted in America, too, particularly in the State Department at that time, and even in the attitude of the Dodds. Martha, in particular, viewed Berlin, and larger Germany, as on the cusp of a renaissance lead by Hitler and the resurgence of hyper-nationalism, pride in country, reduced unemployment, and a general feeling of optimism.

Although Hitler was Chancellor at the time, the real power lay with the elderly President Hindenburg, who had the constitutional authority to appoint, or remove, the Chancellor, and more importantly had the support of the regular German Army. Hitler’s power was growing, but he knew that Hindenburg would defeat him in an overt conflict. Straightforward force would not work. In the background of Dodd trying wrangle monetary guarantees from the Reichsbank and understand the German mindset concerning the Jews, and Martha’s sexual escapades with the media and diplomatic elite, Hitler was juggling the power struggles in Germany among the SA (Sturmabteilung or “Assault Division” a/k/a the brown-shirt, rag-tag Storm Troopers), the SS (Schutzstaffel or “Protection Squad” the black-clad elite troops of the Nazi Party), the Gestapo (an acronym of the GEheime STaatsPOlizei or “Secret State Police”), and the regular German Army (composed of the land forces “Wehrmacht” the navy “Kreigsmarine” and the air force “Luftwaffe”).

Ernst Rohm, the notorious homosexual and long-time friend of Hitler, headed the SA which was despised by the regular German Army and distrusted by the SS. Conflicts between the Gestapo and the SS occurred frequently as well, including a fascinating account where one of Martha Dodd’s lovers, the first Gestapo head Rudolf Diels, had his personal residence ransacked by the local SS and his personal papers stolen. In response, Diels organized Gestapo forces, went to the SS headquarters, surrounded it, and confronted the SS commander in his own office as he sat rifling through the papers of Diels that he had just stolen. The confrontation was tense, and eventually it took Himmler and Goring to settle the matter (Goring had installed Diels and controlled the Gestapo at that time, while Himmler was head of the SS). While it is not really possible to feel anything akin to sympathy for the head of the Gestapo, it seems that Diels had a small semblance of conscience, or at least was not cut from the same cloth as the pure psychopaths that succeeded him. He went into exile at least twice for fear of being purged, and when Himmler finally replaced him it was with Reinhard Heydrich, dubbed by Hitler himself as “the Man with the Iron Heart.” As Larson stated it, with Diels gone, the last trace of civility left the Gestapo. NOTE: Heydrich was played by actor Kenneth Branagh, and actor Stanley Tucci played Adolf Eichmann, in the excellent 2001 film Conspiracy detailing the 1942 Wannsee Conference where the “final solution” to the Jewish problem was formulated.

These things going on in the background, and the madness to come, were not perceptible to the Dodds, or to any outsiders who wandered into Germany at that time—other than Jews of course. The Jewish population in Germany was small, and the overtly anti-Semitic laws began in small doses, mainly by excluding Jews from government, then from industry and business. As this was going on, the sun still came up and the birds still sang in the Tiergarten, there was no disruption to the city, to the lifestyle of the Dodds (who had little sympathy in any event), and Hitler’s ultimate ends were far from clear, nor was he in power totally at the time. Germans were weary from World War I, and the Treaty of Versailles had sapped the German spirit, but Hitler was beginning to strike the right chords.

Larson’s gift is that he sifted through the personal diaries, letters, correspondence, and other contemporaneous documents of the Dodds and those of their contemporaries, in order to weave a narrative that is personal and compelling with the looming backdrop of doom that the reader knows will come, but is not known by the Dodds. To the Dodds, Hitler was a curiosity. No established statesman or diplomate believed that he could sustain momentum, and certainly did not believe that he was capable of running a major European country surrounded by the likes of Hermann Goring, with his adolescent penchant for uniforms and absurd, lavish spending, or the hard-edged former chicken farmer Himmler (although the shrewd Goebbels did convey an understanding of how to acquire power and keep it).

The Dodds interacted socially and diplomatically with Goring, Goebbels, and other lesser Nazi officials. Ambassador Dodd met with Hitler himself on several occasions, never quite sure what to make of the emotional outbursts, the seemingly irrational Jew-hatred, and the ever vehement protestations that the German people wanted peace, even though Hitler was clearly arming the military for conflict. The gregarious Martha was introduced to Hitler in an odd attempt at a date-set-up by close aide Ernst Hanfstaengl, a Harvard graduate who distanced himself from the Nazis later, which ended in a polite Hitler kissing her hand, but otherwise showing no interest.

Martha, and to some extent Ambassador Dodd, seemed oblivious to the coming storm, but they soon found themselves experiencing life inside a militarized, irrational political surreality. Journalists typically catch these winds early, and Berlin had several hangouts for journalists, intellectuals, and other avant-garde types that was frequented by Martha (William Shirer was a regular at these places as well). These people, and Jewish friends of Martha’s (and of Dodds) spread unease at the warning signs that the reader can see, but for months Martha and Ambassador Dodd perceived no problems with Hitler.

The SA was always a thorn in Dodd’s side, with its fanatical brown-shirts seeding violence seemingly at random. These were diplomatic headaches when Americans were attacked. Other small harbingers emerged, such as the earnestness with which Germans were forced to snap a Nazi salute. This was not a military phenomenon. Citizens were encouraged, and did, salute each other in the Nazi style, and when Dodd refused to do it, he suffered social scorn but no physical harm because of his status as a diplomat, but failure of other citizens to show respect in this manner caused sometimes violent outbursts from the SA.

Later, more substantial was the atmosphere change in the country as a result of the surveillance and spying by the police. This permeated the conscience of Germans, caused fear and distrust among them, resulted in neighbors informing on neighbors, and overall elevated the level of fear and hysteria in the country (similar to what America would go through with McCarthy-ism in the 1950s). Even in the private residence of the Dodds, spontaneity of thought and conversation was stifled. Even in Dodd’s beloved Tiergarten, he was able to walk and speak to other diplomats without fear of being surveilled, but even here, Dodd noticed when benches painted yellow appeared, those in the worst places in the park, reserved for Jews. Dodd was a southerner, and an historian, and I kept expecting some thought from him regarding the parallels between how the Germans were treating Jews and how Americans treated Africans (my own father who grew up in the 1950’s can still remember seeing “Colored” and “White” water fountains at the county courthouse in Enid during his childhood), but if Dodd made such connections, it was not revealed in this book.

Dodd’s focus, of course, was on Adolf Hitler. Hitler’s true character was revealed in mid-1934 when he finally resolved the brewing tension between the German Army and the SA. SA leader Ernst Rohm was an old ally of Hitler’s but Rohm had ambitions, and wanted to consolidate military power. Hitler was shrewd enough to know that he needed the support of the regular army in order to achieve total power. Hitler resolved the issue through a devil’s bargain with Defense Minister Werner von Blomberg that guaranteed Hitler support from the regular Army upon the death of President Hindenburg in exchange for Hitler neutralizing Rohm and the SA. Hitler betrayed his long-time friend, and orchestrated the so-called Night of the Long Knives, purging dozens of Nazi and government leaders, including Rohm, whom Hitler arrested personally. When President Hindenburg died in August, 1934, Hitler seized total power in Germany.

The Dodds witnesses this first-hand. They actually saw the long, black cars of the SS men as they surrounded homes; followed the purge, as executed by Goring and Goebbels, as it happened. Vice-Chancellor Franz von Papen, who had weeks earlier given a speech critical of Hitler, was saved by his association with President Hindenburg, who was still alive at the time, but Papen was nevertheless placed under house arrest. Dodd admired Papen’s bravery in delivering the “Marburg Speech” and drove by his house during the purge, seeing Papen’s son as he stared helplessly out the window. Papen survived the purge, but two of his aides did not, and his son eventually found his way to the Dodds, telling Martha Dodd that he was heartened by the gesture of the Ambassador driving by.

As Hitler consolidated power, the Nazis became entrenched fully in German life from the summer of 1934 forward until the end of World War II. Dodd’s stint as ambassador ended in 1937. He continued to warn authorities of the dangers posed by Hitler, and also Italy and Japan; however, his career ended on a rather ignominious note when he was back in America, driving his car and struck a 4-year-old black girl, and then left the scene without checking on the girl. She suffered severe injuries, but survived. Dodd was charged with leaving the scene of the accident and found guilty, fined and ordered to pay for the child’s medical expenses.

This sad bit certainly besmirches Dodd’s character, perhaps rightly so, and Larson is to be commended for including it at the end of the book, even when the incident had nothing to do with Dodd’s duties as ambassador. Larson’s book is indexed and end-noted as a history book might be, but it falls in the middle somewhere between straight-history texts and newspaper reporting—the area where art lies. Larson provoked me to read more about the characters he presented which is, I suppose, one of the noble purposes of expression. The Dodds were witnesses to the beginnings of events that would consume the lives of millions of people and affect generations to come. Larson lets the reader have a glimpse into the face of it, as they saw it and lived it, and I think the world is better off for his effort.

*NOTE: Erik Larson also wrote The Devil in the White City (2003), written in the same style as Beasts, which chronicled notorious serial killer H.H. Holmes amid the backdrop of the 1893 World’s Fair in Chicago. It, too, is an excellent read and highly recommended.

HEARSAY

MANSON ILL: Notorious inmate Charles Manson, 82, is reportedly in ill-health and has been hospitalized.

OFFICER CHARGED: A former reserve officer in Bartlesville, James Warren Justus, has been charged with assault.

NEW JUDGES: Former Assistant District Attorney Lori Puckett has been sworn in as Special Judge in Cleveland County; also, Assistant District Attorney Jason Seigars has been sworn in as Special Judge in Garfield County. Also, in the wake of the retirement of District Judge Richard Van Dyck, the Judicial Nominating Commission is still waiting for the OSBI to conduct background checks on the applicants.

OVERDOSE: In this alarming report, more Oklahomans died from meth overdoses than prescription drugs in 2015.

OFFICER SHOT: A Valley Brook police officer was shot during a traffic stop, but will survive. The suspect appears to have been roughed up a bit.

TULSA TICKETS: Amazingly, Tulsa police seem to be writing fewer traffic tickets over the last ten years.

ACTING D.A.: With the retirement of Chris Ross, longtime assistant Paul Smith has assumed the duties of District Attorney for Pontotoc, Seminole, and Hughes counties.

SARRT: Something called a Sexual Assault Response and Resource Team has emerged recently as a new interagency and interdisciplinary tool to deal with sexual assaults.

NEW SHERIFF IN TOWN: The new Pittsburg County Sheriff shook things up by conducting a shakedown of inmates on his first day on the job.

RIP: Former Muskogee municipal judge A. Carl Robinson passed away last week at the age of 90.

SHAKEUP: District Attorney Matt Ballard has shaken up his staff to bring in the new year.

HONORED: Police Officer Ian Naylor has been named the Police Officer of the Year in Ardmore; also, Rogers County District Judge David Smith was named “Judge of the Year” by the OBA Family Law Section.

CHARGES DROPPED: Murder charges have been dropped by the Oklahoma County District Attorney in the case of Jim Hankins, who had confessed to murdering his wife, because the confession could not be corroborated. NOTE: The Jim Hankins in the story is not me!

CONTRABAND: Prison officials in Hominy have thwarted efforts to bring in contraband through footballs and basketballs.

JANUARY 20, 2017: 2017 Cindy Foley Criminal Defense Basics will be good for 8 hours of CLE (including 1 hour of ethics), and will be presented by a long list of excellent lawyers at the Norick Downtown Public Library.

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